Immigration Law Legal Issues

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ASU Law Professors Evelyn Cruz and Cathy O’Grady discuss the legal challenges facing Arizona’s new immigration law.

José Cárdenas: As the debate over Arizona's tough immigration law continuation, advocates of immigration reform prepare their legal arguments to challenge the new legislation. Here with legal analysis on SB 1070 is Evelyn Cruz, clinical law professor and director of the immigration clinic at ASU's Sandra Day O'Connor college of law, and Cathy O'Grady, associate dean and professor at ASU's college of law. Thank you for joining us on "Horizonte." Professor Cruz, you heard the prior interview with two law enforcement officials or people who have had extensive law enforcement experience. The suggestion was that the minority community should actually take great comfort in the new statute. Did you take comfort from what you heard? Is there anything you had concerns about with what was said?

Evelyn Cruz: Part of the problem is that a community feels very threatened by the enforcement attitude that our state has. And so I don't know if there were enough calming words. They want to be able to see the police officers actually carry out a reasonable approach to the law that doesn't harm the relationship with the community.

José Cárdenas: Two questions. One, in the statute itself is there anything that's a concern to you?

Evelyn Cruz: One of my biggest concern is that it says in it that any contact, any lawful contact would be -- would prompt the use of this statute. And often times when a victim calls for assistance from the police the police will come, and that is a lawful contact. And how the police officer is going to be treating that individual as the individual sounds like they are quote unquote, someone from another country. We have over 15% of our population Arizona foreign born. That doesn't mean every one of them does not have status in the United States. And those that do we consider calling because they don't want to be harassed about proving their status.

José Cárdenas: Mr. Livingston suggested in that scenario, where you're the victim, you've called the police, they're not going to ask you those question.

Evelyn Cruz: It depends on whether it is carried out in that way at the ground level. Like I mentioned, the community is very concerned about what the statute says. And how it will actually be carried out has a lot of impact on whether they are going to believe his words.

José Cárdenas: One last question before I talk to professor 0 Grady, Mr. Cramer, involved in immigration for over 26 years, said he could make questions -- make determination was respect to lawful presence by asking people if they're U.S. citizens. Is that accurate?

Evelyn Cruz: Well, under the law, it is up to the government to prove that person is not a U.S. citizen. Therefore asking me whether I'm a citizen goes beyond what their ability to do is. They cannot say where I was born. If I indicate that I was not born in the United States, then that can lead them to a reasonable suspicion I might need some prove I have status in the United States. But asking the direct question, are you a U.S. citizen, violates my rights against self-incrimination.

José Cárdenas: Professor, as I understand it, one of your areas of expertise and one of the areas in which you analyze the new statute has to do with the question of preemption. First, explain what that is, and tell us, is SB 1070 preempted by federal law?

Cathy O'Grady: Preemption is based in the supremacy clause in the constitution article six, which says the constitution and United States law, which are enacted pursuant to the constitution, are supreme in our country. And Congress has the power under article one, section eight, to enact laws that uniform laws regarding naturalization. So the point here is, the question of preemption now has evolved from those foundations. Does this federal law, the federal immigration law, does that cover the fields such that it preempts states from getting involved in the area in this -- in this particular way, the question would be, it goes back to the intent of Congress then acting the federal legislation. Did Congress intend to cover the field of immigration such that it's nationalized policy in our country, and that each state wanting to do sort of their own thing would be preempted from doing that? The way I understand this situation, this immigration law in Arizona is meant to sort of help the federal government enforce the federal immigration laws, but the Supreme Court of the United States has said that in the area of immigration, it is an area that Congress intends to occupy the entire field. So even if there's no conflict between the state and federal law, and the thing about preemption, we don't need to go through these hypothetical's and figure out what the police are going to do, they tell us they would never do it this way, but the law says they might, or they can, the question is more on the face of the laws, and whether the federal law in Congress is intent, wh was -- covers the entire field of immigration.

José Cárdenas: And the consequence of preemption is what?

Cathy O'Grady: The consequence of preemption would be that on its face, before the law goes into effect, before we know how it's going to play out, if the court finds that the federal law preempts the stay law, the stay law will be invalid.

José Cárdenas: Do you expect medium legal challenges?

Cathy O'Grady: I do expect immediate legal challenges.

José Cárdenas: They don't have to wait until the law goes into effect?

Cathy O'Grady: I haven't seen them yet, but I expect them, and would I suggest the preemption arguments are the strongest arguments to make on the face of the statute before it goes into effect.

José Cárdenas: Now, how does your analysis square with the ninth circuit's decision upholding Arizona's employer sanctions law against preemption arguments?

Cathy O'Grady: That is is a different federal piece of legislation, and in that legislation, Congress actually wrote a phrase that deals with preemption, and said, we intend to preempt all state efforts and then wrote in what's called a savings clause. It says paren, except in the area of licensing. And other similar laws. So the reason why the employer sanctions law has survived the challenges so far is the lower court and the district court in the ninth circuit has found Congress intended to allow states to do -- to use their licensing laws in this case employment licenses, business licenses, in this fashion. So it's a matter of interpreting that express provision regarding preemption which was in that particular federal legislation.

José Cárdenas: Professor Cruz, we've only got a few seconds left. Are there legitimate concerns about racial profiling in this legislation?

Evelyn Cruz: Yes. There are. Because it's very difficult to determine whether someone is undocumented or not. What does an illegal alien look like is a very hard thing to prove. Or establish. Someone who looks suspicious in a neighborhood that is dangerous, that looks like they might be committing a crime, that is easy for a police officer to establish. But to tell whether or not someone who is --

José Cárdenas: We're going to have to end there, I apologize. Thank you both for joining us on "Horizonte."

Evelyn Cruz:Law Professor, ASU;Cathy O'Grady, LAw Professor, ASU;

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